Monday, August 11, 2008

This post is from TSA's Chief Counsel Francine Kerner. It was originally intended to be a response in the comments section to answer some ID questions, but we thought it deserved its own post. Thanks to Francine for taking the time to provide this well thought out and very informative response.

I would like to share my perspective of this issue and my legal analysis. From my perspective, in considering these matters, we need to go back to first principles: what security goals are we trying to achieve? One goal is to ensure that bad things are kept out of the sterile area. Another goal is to ensure that known or suspected terrorists are kept out of the secure areas of the airport and off airplanes. We simply do not want to provide a terrorist with access to the aviation transportation system to plan, plot or carry out criminal acts.

To achieve the first goal, keeping out bad things, we perform a physical examination of passengers, employees and other individual who enter the secure areas of the airport. We also perform a physical examination of their property. Sometimes these security measures take place at the checkpoint. Sometimes they take place at other entrances to the airport.

To achieve the second goal, prohibiting entry by known or suspected terrorists (regardless of what they are carrying), we perform or cause others to perform an identity check against government databases. Identity vetting of airport or airline employees is a rigorous process that is based on a collection of fingerprints, a criminal history records check, and a security threat assessment.

Of obvious necessity, identity vetting of passengers is handled differently. I think of it as a two-step process, a responsibility shared between the air carriers and TSA. The air carriers compare a passenger's name to government watch-lists, while TSA ensures that the name provided to a carrier, as reflected on the boarding pass, matches the ID that the passenger is carrying.

It is instructive to note that before September 11, under government directive, air carriers were required to check a passenger's name against government watch-lists and confirm a passenger's identity by examining specified forms of identification.

Over the last year or more, TSA has taken over the identity verification process, stationing TSOs before the checkpoint to perform this function. More recently, TSA has determined that passengers who fail to show ID must otherwise assist in confirming their identity before being permitted sterile area entry. All of these steps have been taken to improve aviation security. Real ID and Secure Flight are other government programs that will continue to strengthen the identity vetting process.

As Chief Counsel, I firmly believe that TSA's ID requirements are warranted from a security perspective and entirely legal. Under a TSA regulatory provision, 49 C.F.R. § 1540.105(a)(2), a person may not enter the sterile area “without complying with the systems, measures, or procedures” applied to control access to the restricted area in question. Verifying the identity of passengers who access the sterile area falls within this rubric and is, in fact, part of TSA’s screening process. It is true that an earlier regulatory provision, 49 C.F.R. § 1540.5, which sets forth definitions, states that access to the sterile area is “generally” controlled through the “screening” of persons and property and that “screening function means the inspection of individuals and property for weapons, explosives, and incendiaries.” The definition of “screening function,” which focuses on physical inspection—the most intrusive form of screening—cannot be read to limit the Administrator’s broad expanse of authority under the operative language of section 1540.105(a)(2) to establish “systems, measures or procedures” governing sterile area access, including an ID screening process. Certainly, the common definition of screening encompasses methods other than physical intrusion. One definition of screening listed by Google reads as follows: “Is the person on a watch-list? Biometric information can be used to determine if a person is cleared to be in a restricted area, or if the person is on a watch list (eg the FBI Most Wanted list).” Similarly, under section 1602(a)(5) of the 9/11 Implementation Act, H.R. 1, the definition of cargo “screening” includes methods other than physical inspection. Given the Administrator’s fundamental statutory responsibility pursuant to 49 U.S.C. § 44901 to secure the aviation transportation system, a unduly narrow construction of § 1540.105(a)(5) cannot be justified.

I hope my response furthers the dialogue on these important issues. Thank you again for raising your concerns.

95 comments:

Over the last year or more, TSA has taken over the identity verification process, stationing TSOs before the checkpoint to perform this function. More recently, TSA has determined that passengers who fail to show ID must otherwise assist in confirming their identity before being permitted sterile area entry. All of these steps have been taken to improve aviation security. Real ID and Secure Flight are other government programs that will continue to strengthen the identity vetting process.

Identity verification process? Pray tell how do you do that? How do you verify that an ID is valid? How do you verify that the person standing there with an ID is indeed that person and not someone who closely resembles the person on the ID?

The answer is you can't and this is just another act in the security theater.

Of obvious necessity, identity vetting of passengers is handled differently. I think of it as a two-step process, a responsibility shared between the air carriers and TSA. The air carriers compare a passenger's name to government watch-lists, while TSA ensures that the name provided to a carrier, as reflected on the boarding pass, matches the ID that the passenger is carrying.

The problem with this argument is that, because this responsibility is shared, it introduces a security hole. The air carriers compare a passenger's name to the watch-lists and print a boarding pass, while TSA staff compare the passenger's identity documents to the boarding pass. The problem is ... no-one is verifying that the same boarding pass is used in both steps.

Identity verification process? Pray tell how do you do that? How do you verify that an ID is valid? How do you verify that the person standing there with an ID is indeed that person and not someone who closely resembles the person on the ID?

Because when TSA rolls out Part Deux of their master plan, you'll be submitting DNA samples, fingerprints, iris scans, etc, each and every time you fly. And when you start complaining about it, they'll just say "hey, you guys told us that picture identification wasn't good enough!"

Another goal is to ensure that known or suspected terrorists are kept out of the secure areas of the airport and off airplanes. We simply do not want to provide a terrorist with access to the aviation transportation system to plan, plot or carry out criminal acts.

Again, I am still hostile towards what I view as security theater, but thank you for putting this point forward. Regardless of my views on the merit of the argument, I'm glad that some explanations are being given. Helping the public understand *why* things are happening is just as important as *what* is happening.

I've also just reviewed 49 C.F.R. § 1540.5 again and cannot find the word "generally" used anywhere in the definition of the screening process. In fact, the only place that term is used in in defining the sterile area, as follows:Sterile area means a portion of an airport defined in the airport security program that provides passengers access to boarding aircraft and to which the access generally is controlled by TSA.Based on this section it seems somewhat ironic in its usage in that it implies that the TSA doesn't have complete control, just that they "generally" have control.

Finally, the current "systems, measures, or procedures" do not actually verify the identity of anyone. They do ensure that I can carry a piece of paper and a piece of plastic that have the same name on them, but it certainly doesn't ensure that I am the person named on either of those documents or that the person named on those documents has actually purchased a plane ticket.

Please end the farce and admit that this whole exercise in fear-mongering has been a miserable failure, put the agency and the American people out of our misery and let's all move on...

Thanks for attempting to put this endless debate to rest. I appreciate how you have pointed out that 49 C.F.R. § 1540.5 merely sets forth definitions. For some reason, the tin foil hat club here seems to think they can lay that tin foil hat on that definition section and completely disregard the rest of 1540...you know, the part that actually talks about systems, measures, procedures, blah, blah ad nauseam and the requirement to comply with same. I grow tired and weary of the utter ignorance and lack of understanding of these regulations that the usual gang demonstrates. Here we are…six years into this program and the vast, vast majority of folks, especially the folks posting here, are just now beginning to look up the regs and are dusting off their armchair JDs! Anyway, I digress… thanks...and by the way...I get it!

I generally really enjoy reading this blog and feel that the tone is often conversational which has really changed my view of the TSA for better. Unfortunately this post feels very dictatorial and "let me tell you kids how things work" which once again makes me feel like it is "us vs them". Just food for thought for future guest posts.

Thank you Francine for taking the time to explain your view of this discussion from the TSA's side.

I note in a previous reply that someone legitimately challenged your addition of the word "generally" where it does not exist in the original document. This is a valid way to sway opinion in oral argument, or when there is inadequate time for the opposition to fully research sources, but fails when there is time to validate one's statements.

You said:

"It is true that an earlier regulatory provision, 49 C.F.R. § 1540.5, which sets forth definitions, states that access to the sterile area is “generally” controlled through the “screening” of persons and property..."

and you were challenged with:

"I've also just reviewed 49 C.F.R. § 1540.5 again and cannot find the word "generally" used anywhere in the definition of the screening process."

Without that word added, the source document actually says something quite different from what you insist it says.

If your argument is so strong and so straightforward that no one could doubt your interpretation, you would not have to shade the truth by adding words not actually included in the source.

The technique is akin to "winning" a debate in school by "quoting" text from an historical agency that never existed. Of course your opponents can't refute something they can't find.

Thing is, we are no longer in school, and we have access to the source and time to examine it.

Please don't assume we are stupid. Thank you.

=|=

I'd also like you, and the other readers of the TSA's Evolution of Security blog, to remember that having any lawyer tell you what the law means, especially one with a horse in the race, does not make it true.

One can regularly find lawyers to represent both sides of ANY argument.

"It is instructive to note that before September 11, under government directive, air carriers were required to check a passenger's name against government watch-lists and confirm a passenger's identity by examining specified forms of identification."

It's my understanding that airlines were not required to confirm a passenger's identity, only to ask but not require him to present credentials that could be used to identify him. Is this correct?

Also, were they required to check passengers' names against the government blacklists, or to check ticket purchasers' names against the blacklists?

"More recently [than the last year or more], TSA has determined that passengers who fail to show ID must otherwise assist in confirming their identity before being permitted sterile area entry."

Yet your written policies still state that ID is required, then several sentences later, state how a passenger may pass the checkpoint without ID. Why do you continue to misinform people about your policies?

To achieve the first goal, keeping out bad things, we perform a physical examination of passengers, employees and other individual who enter the secure areas of the airport. We also perform a physical examination of their property. Sometimes these security measures take place at the checkpoint. Sometimes they take place at other entrances to the airport.

It is well established that not every employee nor every entrance into the sterile area to an airport is screened each and every time it happens as it ought to be if security is the priority you say it is. You suggest that the screening might happen in other places that are out of public view, but it is hard to reconcile that with the sight of an individual walking through the checkpoint with no screening or up the exit aisle with just a wave at the security guards. This is not secure. You have effectively created a two-tiered system of access based not on security, but on the convenience of airport employees.

So even if we stipulate that TSA can implement ID checks as part of its screening measures, which I personally find questionable, but we'll suppose that it can for the sake of argument here, in order to maintain equal protection under the law as required under the 14th amendment to the Constitution (remember that pesky document that does not seem to apply to the current executive branch or its institutions?) all individuals regardless of status would have to undergo the same scrutiny, regardless of their status or how many times that person may have had to undergo the check during the day.

But that's impractical you say. It'll slow up the line you say. We know and trust these people you say. We run background checks on these people you say. Balderdash I say! If you screen me each and every time I go through knowing full well that I am not a threat -- after all I've flown 1000 times and I've never caused a problem except to make the odd snarky remark at the officious grunt behind the id checking podium if I'm in a bad mood, you can screen the people who by the fact that they are well known at the airport could easily be bought off or blackmailed into causing problems. If efficiency is the problem, then set up a special line for the employees but do not suggest to me that this is a problem that is "under study" as the TSA did a few months back.

You as well as anyone are aware that without the law you cite that the ID checks would not be upheld by the courts, and even with the law you cite may not be upheld in the courts. The problem is that up until now no one has gone through the process to get the laws tested and challenged by the courts.

And finally, I have done quite a bit of work in the internet industry and have attended law school, and the last time I checked, google searches were not recognized legal authority. Please do not insult the public's intelligence by using them in your arguments.

"Here we are…six years into this program and the vast, vast majority of folks, especially the folks posting here, are just now beginning to look up the regs and are dusting off their armchair JDs!"

Six years ago this blog was not available to have a dialog, so that point is not relevant. Additionally, there are attorneys participating who are doing an excellent job of rebutting Francine’s position.

Any thinking person knows the ID “verification” procedure can be circumvented very easily and thus, all the legal citations in the world aren't worth a darn.

TSA might need to find a new lawyer. Like all of the political appointees these days Francine does not appear to actually be qualified for job. I don't mean that as a ad homium attack, simply a statement of fact supported below. [I freely admit for example that I am not qualified to be a microbiologist for the USDA.]

Case in point: "The definition of “screening function,” which focuses on physical inspection—the most intrusive form of screening—cannot be read to limit the Administrator’s broad expanse of authority under the operative language of section 1540.105(a)(2) to establish “systems, measures or procedures” governing sterile area access, including an ID screening process."

The definitions section of a law is not there for our amusement, it is an integral part of the law specifically for this reason, so that lawyers don't just make up definitions of key words. The definition of screening in the law takes precedence over any random definition you can find somewhere on the net or even in standard published dictionaries, especially when you are just quoting one of your lackeys. If a law choose to define red as "a temperature just below freezing" then that is what it means in the following section.

RE: To achieve the first goal, keeping out bad things, we perform a physical examination of passengers, employees and other individual who enter the secure areas of the airport. We also perform a physical examination of their property. Sometimes these security measures take place at the checkpoint. Sometimes they take place at other entrances to the airport................................I find the above statement to be lacking in the truth department.

Francine, are you saying that all airport employees/workers and their property are inspected each and every time they pass from the "not sterile" side of the airport to the "sterile" side of the airport?

Can you tell me and the others, does TSA have any real "security specialists" on the payroll? Almost every blog posts shows just how ridiculous this whole agency performs some very basic functions. I am willing to bet, that you would FAIL a test involving ID checks. It has been pointed out numerous times that you are trying to match a known (ID card) to an unknown (boarding pass). To any reasonable person, this would make sense, but somehow you just want to ignore that simple fact. WHY?

Laws or no laws, or if you can or can't really doesn't matter here, what you are doing will NOT stop a determined and "adaptive" (your words) terrorist.

How do you reconcile this reading with the 9th Circuit's holding in Gilmore, which stated that ID verification was constitutional only because an alternative method (extra screening) was allowed for those who did not wish to show ID?

(and for the record, to the above poster who talked about "Armchair JDs"... I hold a JD, an LLM, and am admitted to the bar in 3 states. Just to let you know.)

I’ve almost given up on engaging on the ID issue because it seems my view and TSA’s are too diametrically opposite to even converse. But I’ll try one more time:

Here’s a hypothetical. Assume temporarily that the watch-list matching process is completely accurate and there are no false positives, since supposedly that is TSA’s goal. And suppose that US citizen John Q. Suspicious purchases a ticket to fly domestically. Assume he is on the no-fly list. Accordingly, he cannot get a boarding pass and cannot fly.

But, although John is on the no-fly list, he is not suspected of committing any actual crime. So there is no warrant for his arrest. (You cannot claim that this scenario is impossible on the grounds that all no-flys are wanted criminals, because they are not. If indeed all no-flys were wanted criminals, then the no-fly list would be a subset of the NCIC and other most-wanted lists, and the response to a no-fly match would be to call the police, not deny a boarding pass.)

Questions:

1) Why is it OK that John is denied the ability to use commercial aircraft by the US Government with no due process and no means of redress?

2) How is the Constitutional guarantee that “life, liberty, and property” shall not be denied without due process consistent with John being denied the liberty of using commercial air travel with no due process?

3) The entire point of having multiple branches of government is checks and balances on the mistakes, both honest and dishonest, of the other branches. Why should we trust DHS/TSA and or DOJ/FBI to create and execute a secret blacklist with no oversight and no means of redress through the courts?

4) You clearly believe that the need for security justifies subjecting all travelers to a blacklist check. Where should the line be drawn? Should we also check all airline passengers for outstanding warrants? What about sex-offender status and registration compliance? How about outstanding child-support payments? Outstanding speeding tickets? Outstanding library fines? Why not just set up checkpoints to check all of these things at the entrances to interstate highways? If the next attack happens at shopping malls, will DHS suggest blacklist checks at mall entrances? Where do you draw the line?

5) Do you understand the dangers of creating a “papers please” society where proper credentials and permission are required to pass checkpoints for travel (or other legal activities)? Do you understand how easy it would be for a future administration to use such infrastructure to deny freedoms to individuals who have done nothing wrong? Do you understand that there is strong evidence that such denials are already happening for politically motivated reasons—e.g., the CNN reporter who mysteriously started matching the watch list only *after* he published an article critical of DHS/TSA?

"To achieve the second goal, prohibiting entry by known or suspected terrorists (regardless of what they are carrying), we perform or cause others to perform an identity check against government databases".

Can you please explain me how TSA going to protect us from UNKNOWN terrorist and keep them out of the secure areas of the airports and off airplanes? Basically you are telling us that TSA protect us only from well known terrorist, and the government databases is only reliable source for verification?

you are idiots, and here's why: "I think of it as a two-step process, a responsibility shared between the air carriers and TSA. The air carriers compare a passenger's name to government watch-lists, while TSA ensures that the name provided to a carrier, as reflected on the boarding pass, matches the ID that the passenger is carrying."

No, TSA does not ensure that the name provided to the carrier matches the ID the passenger is carrying. TSA only checks that the name provided by the potential terrorist, as reflected by the boarding pass printed by the potential terrorist, matches the ID provided by the potential terrorist.

This old security hole was demonstrated years ago by the fake boarding pass stunt. That they haven't patched this stupid hole since then shows that TSA's grand ID program is just theatrical hype.

That's why y'all are idiots.

In other words, TSA is idiotic because TSA management counts the lock and the door as two "layers of security" when the lock isn't even attached to the door--you just need to write yourself a note that you opened the watch-list lock so the TSO can wave you through the ID-checking door.

"Of obvious necessity, identity vetting of passengers is handled differently. I think of it as a two-step process, a responsibility shared between the air carriers and TSA. The air carriers compare a passenger's name to government watch-lists, while TSA ensures that the name provided to a carrier, as reflected on the boarding pass, matches the ID that the passenger is carrying."

Why do you and other TSA employees continue to pretend that this somehow enhances security? It's telling that for all of the bold assertions TSA makes about ID, it cannot provide even the most tortured argument explaining how presenting an ID either verifies identity or enhances security. You're lying, we know you're lying, and we'd like you to stop lying and stop wasting out time with useless security theatre.

I generally really enjoy reading this blog and feel that the tone is often conversational which has really changed my view of the TSA for better. Unfortunately this post feels very dictatorial and "let me tell you kids how things work" which once again makes me feel like it is "us vs them". Just food for thought for future guest posts.

Before you take too harsh a view of Francine's post you need to know that originally the bulk of her post was a reply to this question I posed directly to her.

"Dear Francine,

Thank you for the response to the blog's top ten questions. Unfortunately the response to the forced ID verification did not address the main issue. I blame this on the fact your office most likely received a very sanitized and generalized version of the question. In an effort to clear this issue I will ask the question.

In C.F.R. 49 § 1540.5 the definition of a sterile area clearly states the TSA generally controls access to the sterile area through screening. As far as I can see this does not allow for a forced ID verification, as a normal criterion for granting access to the sterile area, as it does not inspect for weapons, explosives and incendiaries. How does the TSA reconcile the forced ID verification with the definition of a sterile area?

C.F.R. 49 § 1540.5Sterile area means a portion of an airport defined in the airport security program that provides passengers access to boarding aircraft and to which the access generally is controlled by TSA, or by an aircraft operator under part 1544 of this chapter or a foreign air carrier under part 1546 of this chapter, through the screening of persons and property.

I think now that you have seen the question I asked her and read her response to my question, that was copy/pasted for her post, you will see she did not intend to make it a "let me tell you kids how things work" post.

What is the official TSA policy on showing IDs? The policy announced with much fanfare by TSA, and torn apart with logic and facts by patriots on this blog, is inconsistent with descriptions of policy by TSO Dean in the comments of this blog. Please clarify this with an official post, not in comments, and explain the reasons for the change.

Thanks, Dean. I was fairly certain of all that, but I hoped Ms. Kerner would chime in.

As for the second answer, Blogger Bog quoted TSA's Chief Counsel Francine Kerner as having said:

"It is instructive to note that before September 11, under government directive, air carriers were required to check a passenger's name against government watch-lists and confirm a passenger's identity by examining specified forms of identification."

It seems that she was mistaken, as air carriers were not, prior to September 11, 2001, required to confirm a passenger's identity by examining any form of credentials used for identification (nor are they required to do so now).

Additionally, I believe that any checking of names against government blacklists that the carriers perform is a check of ticket purchasers' names, not necessarily passengers' names. We have no guarantee that they are the same. It's a fine point, but Ms. Kerner makes a living understanding fine points.

Another goal is to ensure that known or suspected terrorists are kept out of the secure areas of the airport and off airplanes. We simply do not want to provide a terrorist with access to the aviation transportation system to plan, plot or carry out criminal acts.

To add to the burgeoning list of questions: where did this goal come from? The good gentlemen above me have already shown that it has no basis in law, so was it handed down by YHVH, or what?

What justification can you present that confirming ID does even a tiny amount of good? All we see is invasive and odious practices meant to defend a system which can be gamed by a five year old and serves no real purpose. If Osama bin Laden himself sat next to me on a plane, so long as he's been properly screened for anything that could present an immediate danger to myself or others, why should I care? He'd probably be much more pleasant and polite that the sweaty fat guy with the two screaming kids I always end up with.

What should I call this type of "goal?" It's not a law, but it's enacted by agents of the government and not obeying is quite likely to get me arrested or at least "voluntarily detained" while my plane leaves without me, so it has the force of one. Its justifications and limits aren't publicly written down anywhere, so it's not a regulation, so what should we call it? Secret law? Double-plus guideline?

Most importantly, what can I do to remove this goal? It's not in any law, so writing to my congressman will do nothing. HE'S just as aggravated by you people as I am. As a God-fearing, hot dog-eating, Walmart-shopping American Citizen, what do I need to do to repeal this dangerously overreaching yet ridiculously impossible physical incarnation of Orwellian black humor?

Dean, I misread part of your reply. Upon further examination it seems to me that you've suggested that airlines check against DHS blacklists neither the ticket purchaser's name nor the passenger's name, but the name of the potential/intended passenger as provided by the ticket purchaser.

Thanks for attempting to put this endless debate to rest. I appreciate how you have pointed out that 49 C.F.R. § 1540.5 merely sets forth definitions. For some reason, the tin foil hat club here seems to think they can lay that tin foil hat on that definition section and completely disregard the rest of 1540...you know, the part that actually talks about systems, measures, procedures, blah, blah ad nauseam and the requirement to comply with same. I grow tired and weary of the utter ignorance and lack of understanding of these regulations that the usual gang demonstrates. Here we are…six years into this program and the vast, vast majority of folks, especially the folks posting here, are just now beginning to look up the regs and are dusting off their armchair JDs! Anyway, I digress… thanks...and by the way...I get it!

C.F.R 49 1540.5 does not merely set forth definitions it also sets forth limitations.

C.F.R 49 1540.5 is a part of that law and therefore carries as much weight as any other part of that law.

Just out of curiosity please state where in C.F.R 49 1540 does it describes systems, measures, and procedures. And please point out where in C.F.R 49 1540 it allows for the limitations in C.F.R 49 1540.5 to be overridden.

I am sorry you are tired of the usual gang daring to ask questions that YOU can’t answer. Prove me wrong on this issue, I dare you.

Yes, we are six years into this and just now people are looking up the regs. Ask your self why. Perhaps six years worth is about all of this foolishness that we can stand. Maybe it is the fact that up to this summer there was NO forced ID verification in violation of the law. Maybe it is the fact that the TSA just created this blog to get our feedback. (Love him or hate him, Kip did at least one thing right)

Why are you trying to black hole my comments? People have had comments responded to comments that weren't here when mine were submitted, and had them approved. I have broken none of the rules you have posted for comments, AND the delete counter doesn't show that my comments have been deleted. Post them or I will find another more public avenue of adressing them. I will delete this comment once my other one shows up.

Francine said: “As Chief Counsel, I firmly believe that TSA's ID requirements are warranted from a security perspective and entirely legal. Under a TSA regulatory provision, 49 C.F.R. § 1540.105(a)(2), a person may not enter the sterile area “without complying with the systems, measures, or procedures” applied to control access to the restricted area in question. Verifying the identity of passengers who access the sterile area falls within this rubric and is, in fact, part of TSA’s screening process. It is true that an earlier regulatory provision, 49 C.F.R. § 1540.5, which sets forth definitions, states that access to the sterile area is “generally” controlled through the “screening” of persons and property and that “screening function means the inspection of individuals and property for weapons, explosives, and incendiaries.” The definition of “screening function,” which focuses on physical inspection—the most intrusive form of screening—cannot be read to limit the Administrator’s broad expanse of authority under the operative language of section 1540.105(a)(2) to establish “systems, measures or procedures” governing sterile area access, including an ID screening process. Certainly, the common definition of screening encompasses methods other than physical intrusion. One definition of screening listed by Google reads as follows: “Is the person on a watch-list? Biometric information can be used to determine if a person is cleared to be in a restricted area, or if the person is on a watch list (eg the FBI Most Wanted list).” Similarly, under section 1602(a)(5) of the 9/11 Implementation Act, H.R. 1, the definition of cargo “screening” includes methods other than physical inspection. Given the Administrator’s fundamental statutory responsibility pursuant to 49 U.S.C. § 44901 to secure the aviation transportation system, a unduly narrow construction of § 1540.105(a)(5) cannot be justified.”

A basic rule of construction concerning the interpretation of CFR’s is breached in your analysis. CFR’s are to be interpreted in the strictest sense especially when the regulation involves restrictions on individuals and their actions. The agency that promulgates the regulation also is the drafter. As such, if the agency wanted to make the rule broader, it should have drafted it as such.

49 C.F.R. §1540.105(a)(2) addresses not only the “sterile area” as related to systems, measures and procedures. It also includes secured areas, AOA’s and SIDA’s. For that reason, the other “systems, measures, or procedures being applied to control access to, or presence or movement in, such areas” are dependent on the particular area at issue. So, for example, in the case of SIDA’s an acceptable system would be the checking of ID’s. On the other hand the definition of sterile area sets forth the specifics for those systems, measures and procedures, which is the screening of persons and property. How is that screening accomplished – through the screening function, which is defined as “inspection of individuals and property for weapons, explosives, and incendiaries.” Until the CFR is amended, that is your limit for the sterile area.

You also conveniently left out two words (among others) when you state “that access to the sterile area is ‘generally’ controlled through the ‘screening’ of persons and property.” After the word “controlled”, the words “by TSA” were not included. As such, you give the impression that the word “generally” refers to the screening process when in fact the reference is to the TSA. That is not only disingenuous, but wrong. Boundaries are set for screening of persons and property.

We also don’t have a reason to go to Google for definitions of “screening.” It is contained in the CFR itself. If that definition is too restrictive, you just can’t conveniently ignore it; you need to go through the process of amending the regulation. In that manner the Google definition can then be included if you feel it is appropriate to accomplishing the TSA mission. Are you not amenable to that?

I had a very seasoned attorney once tell me that if he was given the opportunity to draft a document, as long as he was able to have free reign over the definitions section, then he would let the other side’s attorneys draft the rest of the document. Definitions are a critical and integral part of a legal instrument.

I can see how an airline can deny boarding to someone since it's their private business, but I can't see how the US govenment can legally deny boarding on PLANES THAT ARE NOT OWNED BY THE US GOVERNMENT. If an airline were to tell me I can't get on their plane, fine. But the government shouldn't be able to.

Whether or not the specific airport decides to allow it for convenience's sake, it's still very much a violation of protocol.

Therein lies a huge problem aggravated by a federal agency that doesn't seem to care or mind that the protocols aren't uniformly followed at each and every airport.

Why aren't regional TSA managers (or however the structure is manifest) terminated or severely demoted for allowing non-protocol activities to happen? My last trip out of Sky Harbor in Phoenix saw what winstonsmith describes: people being waved through security without screening and being allowed direct access to the sterile area.

That TSO who allowed that to happen should have been immediately terminated. If he was directed by the local TSA manager to allow that, then the workers gets a write up and the manager gets dismissed. And up through the chain of command.

But it's not going to happen because as far as I can tell because the dead weight at the top (that's you, Chertoff) is probably too busy lining up a K Street job for his sudden change of employment status in January instead of acting like a cabinet member and doing his actual job.

Before everyone gets all "wtf censorship!" because of my suddenly missing comments-- I specifically asked for them to be removed.

Anyway.

Phil wrote:Thanks, Dean. I was fairly certain of all that, but I hoped Ms. Kerner would chime in.

With the way the EoS team doesn't make appearances in comments anymore? You're joking, right? :D

Phil wrote:It seems that she was mistaken, as air carriers were not, prior to September 11, 2001, required to confirm a passenger's identity by examining any form of credentials used for identification (nor are they required to do so now).

I think there's a misunderstanding arising from the assumption that she meant the check-in procedure.

This is how I interpreted it, and I'll be using lots of words to try to get my point across, so bear with me:

And I base this argument entirely upon what she said at the start of the very next paragraph, which I will post here for reference.

Francine wrote:Over the last year or more, TSA has taken over the identity verification process, stationing TSOs before the checkpoint to perform this function.

Which leads me to believe that when she wrote...

Francine wrote:It is instructive to note that before September 11, under government directive, air carriers were required to check a passenger's name against government watch-lists and confirm a passenger's identity by examining specified forms of identification.

...right before it, that she was, in fact, speaking of two separate and different things.

Before this past year, the role of what is now known as the Travel Document Checker was performed by the airlines. They either contracted it out to private security companies or had their own people there, however they chose to do it (in Huntsville's case, they worked for a company called DGS, the same people that do baggage-handling for Delta Airlines here at HSV), but the fact remains that they were asking the passengers' for their IDs, and that they were confirming the IDs as matching the passenger and the name on the boarding pass.

Prior to 11 September 2001, the FAA released a Security Directive which pretty much started the requirement of airlines to ask for ID at check-in, and confirm that the passenger's name matches the information put into the system and checked against the no-fly list. This occurred sometime in the mid-90s (I haven't been able to lock down a set date).

Later (and I can't verify this, search as I might) the FAA supposedly rescinded this requirement, but the airlines apparently continued to request ID from the passengers.

When TSA came in and took over control of screening operation oversight from the FAA, they then issued a Security Directive directing the air carriers to continue the practice once more. Basically the same thing the FAA did, only different letterhead.

...Okay. Is everybody confused yet? :D

Timothy Clemans wrote:Does the TSA have employees who test the system with invalid IDs, invalid boarding passes, and reports of lost ID?

Yes; Yes; Probably not.

Whether it's on a national scale or just something our bosses do locally though, I couldn't tell ya'.

"The Transportation Security Administration has collected records on thousands of passengers who went to airport checkpoints without identification, adding them to a database of people who violated security laws or were questioned for suspicious behavior."

Apparently since this has become public, the Kipster has said that those name would be purged soon - wanna bet?

"The agency then began adding names of people who were questioned by police but not necessarily charged after an airport screener saw them acting suspiciously."

Wow. Classic retaliation and persecution based on an individuals opinion. Even with the flip-flop by Kip, this is a nasty bit of data-gathering and persecution by the agency.

The article also says that the TSA "has been expanding an electronic database that started a couple of years ago to keep track of people..." I though the TSA didn't claim ownership of the don't fly or watch list. Just how many of those are there?

Please address this topic in an upcoming blog entry.

P.S. sorry for the double post. I first added this to an older thread.

So, according to USA TOday TSA has been adding personal information on people who lose or misplace IDs to the watch list (a watch list that TSA has said it doesn't maintain).

Further, if a person is identified by a SPOTter and/or a screener (something that is based SOLELY on the opinion of one person) and is questioned by police, that person's details are added to the same database - and the database is available to police everywhere. That means a person who is not doing ANYTHING wrong may find themselves identified as a possible threat (and subject to additional scrutiny) for 15 YEARS.

IIRC, y'all said here that you weren't keeping the watchlist.

So:1) Why should we believe what you write? It appears more and more to be propaganda.

2) How do we restore our good name and civil liberties? According to DHS, we don't have either the right to know we're on this database NOR do we have the ability to challenge it.

3) When will you honor the Constitution and treat Americans as being innocent until PROVEN guilty in a court of law?

4) Why was the database tracking policy changed ONLY AFTER USAToday was about to publish the story? Why does it take potential embarrassment to change an unAmerican policy like this?

"I can see how an airline can deny boarding to someone since it's their private business, but I can't see how the US govenment can legally deny boarding on PLANES THAT ARE NOT OWNED BY THE US GOVERNMENT. If an airline were to tell me I can't get on their plane, fine. But the government shouldn't be able to."

Yeah, it really pisses me off that the DMV and police can moderate my driving when I bought the car from Honda. JEEZ!!!

Can you see the logic...?

Yes, I think some power-hungry TSOs have used the "Do you want to fly today" line WAY too often. In my opinion, that should be reserved for superviors and managers, and only in EXTREME situations. I myself have never used that line, and never plan to use it. I don't believe it's my place. I will call a supervisor over if something ever escalates beyond my control.

When it comes to ID checking... I personally think it's a good thing. I feel safer flying with these checks in place. Even if it isn't 100% (which nothing ever is), it is at least a major road block.

"So, according to USA TOday TSA has been adding personal information on people who lose or misplace IDs to the watch list (a watch list that TSA has said it doesn't maintain).

Further, if a person is identified by a SPOTter and/or a screener (something that is based SOLELY on the opinion of one person) and is questioned by police, that person's details are added to the same database - and the database is available to police everywhere. That means a person who is not doing ANYTHING wrong may find themselves identified as a possible threat (and subject to additional scrutiny) for 15 YEARS."

"The Transportation Security Administration has collected records on thousands of passengers who went to airport checkpoints without identification, adding them to a database of people who violated security laws or were questioned for suspicious behavior."

Apparently since this has become public, the Kipster has said that those name would be purged soon - wanna bet?"

I think this confirms a lot of my analysis I posted on the PIA in the "Top 10 Questions" thread.

Quote from TSO Rachel: Yeah, it really pisses me off that the DMV and police can moderate my driving when I bought the car from Honda. JEEZ!!!

Can you see the logic...?"

I can see your lack of logic.

You're comparing the request to operate a heavy machine moving at a high velocity and the potential to kill people and damage property to showing up and asking to ride something that requires nothing more than a ticket.

Operating a car is obviously a privilege. Riding in one isn't as it doesn't need a license and cannot be denied by a government without due process (i.e. restricted to limited movement as a part of a sentence, house arrest, etc).

TSA is doing the latter.

Yes, I think some power-hungry TSOs have used the "Do you want to fly today" line WAY too often. In my opinion, that should be reserved for superviors and managers, and only in EXTREME situations. I myself have never used that line, and never plan to use it. I don't believe it's my place. I will call a supervisor over if something ever escalates beyond my control."

You seem to be rare in this view. Wish more took this view.

"When it comes to ID checking... I personally think it's a good thing. I feel safer flying with these checks in place. Even if it isn't 100% (which nothing ever is), it is at least a major road block."

Glad you feel safer. Yet no one at TSA has been able to actually prove how it MAKES us safer. Just "we say it does" and "trust us." Neither is a valid answer. Your answer here shows that it is security theater

The roadblock is only a road block to the honest people. The silly ID schnenangigan can easily be bypassed by a determined criminal or terrorist, and you wouldn't be the wiser because they'd try to blend in, NOT stand out by not having ID.

When it comes to ID checking... I personally think it's a good thing. I feel safer flying with these checks in place. Even if it isn't 100% (which nothing ever is), it is at least a major road block.

First of all, thanks so much Rachel for taking the time to comment on this blog, for caring about what goes on, and for your willingness to use your name. I really appreciate your comments here on the blog. I wish the EoS team participated as much as you do!

I do want to respond to your statement that checking IDs is a "major road block." Could you help me to understand how you see it this way? I know it's a major hassle for everyone, and it does catch illegal immigrants, but I don't see how it presents even the slightest obstacle to terrorists, let alone a major road block. In other words, I don't think it will stop a single terrorist from getting on a plane, ever. A terrorist would use a valid ID with a fake boarding pass every single time, in my view.

I know you feel otherwise, so I'm really interested in why you feel this helps stop terrorists, so I can better understand your position and that of the TSA.

Honestly. How dare you keep records of those who don't have ID? What was wrong with the old way?

I've tried and tried to side with you. I've tried to take your side even when many people disagreed with you. You remind me of myself - I feel like I can't do anything right, and I feel unappreciated by my peers. I try my best to be a good person, and people keep giving me a hard time. So I can relate to you, because you're the most unpopular agency of the federal government (along with IRS). That's why I tried to understand your views, and try to respectfully disagree.

But, this time? No way. You guys have totally disgusted me. We have told you REPEATEDLY over and over and over a million times that this new ID checking policy is pointless, stupid, and does nothing to help security. Talking to you is like talking to a brick wall, so I give up.

You are a pathetic excuse of an agency and I hope you realize that and stop with the bs and propaganda.

Thanks,

Andrew

Oh, and I don't care if you try to track me down or put me on a list. If you do, that makes you look like a spoiled child who can't get your way. If you want to discuss this calmly and rationally with me, I'm all for it. Bring it on.

from http://www.tsa.dhs.gov/press/happenings/081308_usa_today_response.shtm

TSA is interested in the individuals who repeatedly present false identification or misrepresent themselves to circumvent the security process. This undercuts the credibility of watch lists, which are an effective tool to keep known or suspected terrorists off airplanes.

This makes no sense if no terrorists are listed on watch lists to begin with. How can these lists be an effective tool to keep naughty people off planes if they aren't listed.

"The roadblock is only a road block to the honest people. The silly ID schnenangigan can easily be bypassed by a determined criminal or terrorist, and you wouldn't be the wiser because they'd try to blend in, NOT stand out by not having ID."

Yep. And lest we forget -- because Lord knows the TSA brain trust has -- the 9/11 hijackers had IDs.

TSO Rachel wrote:"When it comes to ID checking... I personally think it's a good thing. I feel safer flying with these checks in place. Even if it isn't 100% (which nothing ever is), it is at least a major road block."

I also believe that ID checking (done properly) is a good thing. However, currently the ease with which someone can bypass the boarding pass and ID check is alarming. Until TSA gets the same ticket scanner that the airlines have at their gates for the screening checkpoint there is very little reason to check IDs.

Some Bloggers have over the months compared TSA tactics to Stasi and Nazi practices of times past. Is it any wonder that the line can be drawn and connected? The TSA says they are protecting us from terrorist. At what cost? Must we surrender our constitutional rights to make Hawley happy? Seems to be the direction he is headed.

Controlling the movement of the people is required to impose the control of the government. TSA is certainly engaged in the control of the peoples movement. Displease TSA and you cannot fly . Have no ID and get placed on a watch list for 15 years. Disagree with a TSO and the local law is called who will be happy to impose their will by force on a citizen. Remember you have no rights at a TSA checkpoint! Sure seems like control of the people to me!

How many more secret laws and regulations have been implemented to keep us safe? Who is the bigger threat, Hawley and the TSA or an unknown actor that may not exist?

"Hawley said the database will still be used but it will not contain people's names who forgot their identification. Such a database helps the TSA spot patterns of activity that may indicate terrorist planning and refer people to the FBI for possible questioning. "It's just like if a police officer chats to somebody. It's part of the investigative process," Hawley said."

I don't find Hawley to be truthful or credible. I cannot accept his statement without some proof.

If a police officer chats to someone do they keep records of that conversation for 15 years? Why does TSA?

Travelers without ID were added in June after the TSA barred them from airplanes. The agency wanted to identify all passengers to check them against watch lists. Previously, passengers without ID could board airplanes after facing additional searches.

When does TSA TDC check the persons ID against any watch list? Where is the security improvement?

Have we not been told by a TSO that ID is really not required to pass the checkpoint? Another secret rule? Again TSA is not truthful.

TSA Representatives have said more than once that TSA does not control the watch list. So what do they control? Do they have direct access to enable them to place a name on the lists. Is that not control? How does one find out what information TSA has collected about oneself?

TSA and its senior leaders are a "Clear and Present Danger' to the United States. All legal efforts must be taken to remove these people from any role of government.

Anonymous wrote...Yep. And lest we forget -- because Lord knows the TSA brain trust has -- the 9/11 hijackers had IDs.

Let me add that not only did they have quite legitimate IDs, legitimate tickets, and legitimate boarding passes, none of them had been identified as suspected terrorists as none of them had ever blown themselves up or gone on suicide missions before...

Those activities are all pretty much one-time-deals (unless one is an abject failure like Reid), and as such, by the time those terrorists are identified, they are no longer a threat.

Robert Johnson said...Quote from TSO Rachel: "Yeah, it really pisses me off that the DMV and police can moderate my driving when I bought the car from Honda. JEEZ!!!

Can you see the logic...?"

I can see your lack of logic.

You're comparing the request to operate a heavy machine moving at a high velocity and the potential to kill people and damage property to showing up and asking to ride something that requires nothing more than a ticket.

Operating a car is obviously a privilege. Riding in one isn't as it doesn't need a license and cannot be denied by a government without due process (i.e. restricted to limited movement as a part of a sentence, house arrest, etc).

TSA is doing the latter.

I would like to add that a driver's/operator's license is only required to operate a motor vehicle on public roadways. The roads are built and maintained by the government for public use. Therefore, the government can take steps to regulate vehicles and drivers.

A license is not needed to operate a motor vehicle on private property. In addition the vehicles are not required to be "street legal."

"So, have those of us who comment here also been put on the watch list?"

I've commented here, often quite critically of TSA policy, over 110 times since March. Anyone who wants to can track down my full name, as I have not been bashful about connecting comments here to my identity.

I flew last weekend and the weekend before, these times not refusing to "show ID" as I previously did, and I was not subjected to any additional screening. Because of this I assume my name is not on the DHS blacklists.

"[Like TSO Rachel,] I also believe that ID checking (done properly) is a good thing."

Hi, Jason. Thanks for taking the time to participate. Could you give us a general idea of why you think this is a good thing? There are quite a few similar opinions expressed here, and it's good to get some variety. Thanks in advance.

I had written a couple of comments on the Blog here in response to Phil that I decided later might tread the line just a little too close to SSI, so I asked the Blog team to remove the comments, and they did.

Turns out later that I was in the clear, but in the spirit of an abundance of caution, and a continuing need to pay my mortgage for the next twenty-six years, I opted to take 'em down.

One of them is gone forever since I didn't back it up, but I don't care since it was directly to Phil and he got the message. The other I put back up later.

And now, just some speculation and some observation:

Andy wrote:How dare you keep records of those who don't have ID?

Speculation: The only thing I can even remotely think of for them to have started this practice is to try and keep track of who seems to continuously "lose" and "forget" their ID, in some way trying to determine people who're simply lying about it.

Observation: I find this mildly amusing, given that people gave the TDC requirement for mandatory ID such grief in the first place since it "protects us from terrorists who can't lie."

Phil wrote:"Hi, Jason. Thanks for taking the time to participate. Could you give us a general idea of why you think this is a good thing? There are quite a few similar opinions expressed here, and it's good to get some variety. Thanks in advance."

Hi Phil. I believe that ID checking is a good thing in order to establish risk mitigation. Not every passenger presents the same level of threat. Through ID checks and watch lists we can establish who poses an elevated threat to the aircraft and perform additional screening to clear the individuals. This being said I by no means support the ID checks as they are currently being carried out. Also, in my own opinion I do not feel that anyone should be denied from flying (watchlist) unless that individual is wanted for a crime and authorities are contacted to take them into custody. No ID individuals would fall into the additional screening category because they would not be able to accurately be assessed for risk mitigation.

Every passenger would undergo normal or standard screening but it would allow us to focus our efforts on individuals that present a greater risk to the aircraft. It should be pointed out that my opinions are dependent upon the watchlist being carried out and applied properly. So I guess I believe in ID checks as a theory and not how the principal is currently applied.

When it comes to ID checking... I personally think it's a good thing. I feel safer flying with these checks in place. Even if it isn't 100% (which nothing ever is), it is at least a major road block.

###############

It's nowhere close to a major road block if you have to march 2,000,000 people per day through it.

Maybe you would "feel" safer if you filled your car with St. Christopher statues, but feeling doesn't make it safer. The focus on making people feel safer without actually making improvements in safety is what makes TSA "Security Theatre".

"I believe that ID checking is a good thing in order to establish risk mitigation. Not every passenger presents the same level of threat."

I agree that some people are more dangerous than others. How do you suppose anyone could determine what level of threat a given passenger presents? Without reading minds, that is. By knowing that the passenger has a history of bombing or attempting to bomb airplanes, maybe? I don't think we have to worry about those people showing up at an airport, as they are almost certainly sitting in prison.

"Through ID checks and watch lists we can establish who poses an elevated threat to the aircraft and perform additional screening to clear the individuals."

I disagree. Identifying people and checking whether they have been blacklisted (see below for definition) will allow us to take some action based on that blacklisting (e.g., hassle that person more than others, prevent him from traveling via commercial airline, arrest him and keep him in custody where he will be less of a danger to others, etc.) But requiring that someone identify himself and checking whether he is on either of the DHS blacklists (we know of a "no fly list" as well as a "terrorist watch list") clearly does not "establish who poses an elevated threat" and who does not. Perhaps this wasn't what you meant. Please clarify if it seems that I misunderstand you.

"I do not feel that anyone should be denied from flying (watchlist) unless that individual is wanted for a crime and authorities are contacted to take them into custody."

I think I can understand your concern in this case. I suspect that you feel that keeping a list of wanted criminals, then checking everyone who passes the government checkpoint at an airport against that list will help us to find and apprehend criminals. I agree with that. However, such a dragnet is unconstitutional, and finding criminals is not the TSA's duty (it's the duty of police).

American courts have established that people in this country have the right to travel and associate without being monitored or stopped by the government unless they have been convicted of committing a crime or are suspected -- with good reason -- of having committed a crime. They have ruled that we cannot set up roadblocks and checkpoints to stop everyone who passes just to catch the few who have done something wrong, or to find the few who are suspected of intending to do something wrong.

While finding and apprehending criminals is a worthy goal, TSA's duty is to ensure transportation safety, not to catch criminals. It's interesting to note that most of the instances of passengers being caught with falsified ID cards and passports that are described on TSA's "Travel Document Checker (TDC)" Web page (under "Travel Document Checking Success Stories") were arrested on charges of immigrations violations, possession of illegal drugs, or credit card theft. None of them is described as having been found to be carrying anything that, had he brought it onto his flight, would have put other passengers or crew at risk.

TSA should leave catching criminals to the police and focus on ensuring transportation security. I don't think my flight is any safer when identity thieves and illegal aliens are kept off board, and the price we pay for TSA security (in money and inconvenience) is far to high to be devoted to catching petty criminals.

"No ID individuals would fall into the additional screening category because they would not be able to accurately be assessed for risk mitigation."

Whether you meant "people who do not present acceptable credentials" or "people whose identity cannot be determined" when you wrote "no ID individuals", I wonder how you think our ability to determine someone's identity affects our ability to assess the risk he would pose were we to allow him to travel via commercial airline. Do you think we have a list of people who pose a real danger to others but have not done anything wrong? If so, does it seem like the American way to treat those inoccent people as if they are guilty? If we had such a list, should we put so much faith in its accuracy and thoroughness that we let people who are not on the list through our airpoint checkpoints with a less-thorough screening?

Jason, if I read you right, you're saying that 1) some people are dangerous and need to be thoroughly screened before boarding a commercial airplane, 2) we have a list of those people, 3) we should assume that people who are not on the list pose so little danger that they need not be thoroughly screened before boarding a plane. Is that right? If not, please set me straight.

As a reminder, following are a couple relevant definitions:

blacklist, n : a list of people who are out of favor [syn: black book], v : put on a blacklist so as to banish or cause to be boycotted; "many books were blacklisted by the Nazis" (WordNet 2.0)

blacklist, v. t.: To put in a black list as deserving of suspicion, censure, or punishment; esp. to put in a list of persons stigmatized as insolvent or untrustworthy, -- as tradesmen and employers do for mutual protection; as, to blacklist a workman who has been discharged. (1913 Webster)

That's not an unreasonable viewpoint. It's exactly how things were before the TSA started putting their fingers in the pie: you were asked for ID, if you didn't have or were unwilling to show any, you got SSSS screening and could continue. What you object to in your post is what we object to in these comments. Welcome.

"Not every passenger presents the same level of threat. Through ID checks and watch lists we can establish who poses an elevated threat to the aircraft and perform additional screening to clear the individuals. This being said I by no means support the ID checks as they are currently being carried out. Also, in my own opinion I do not feel that anyone should be denied from flying (watchlist) unless that individual is wanted for a crime and authorities are contacted to take them into custody. No ID individuals would fall into the additional screening category because they would not be able to accurately be assessed for risk mitigation."

The sentence that I highlighted states what so many of us believe: The TSA sees everyone as a threat until they prove themselves not a threat.

As so many others have asked, Jason, just HOW does an ID check establish who poses "an elevated threat to an aircraft"? We know the watch list is useless - it's very size tells us that as well as the fact that known terrorists are not on it.

Just some quick questions about verifying a person's identity (without getting into the legitimacy of that endeavor).

(1) Do those folks being put on "a list" for not being readily identifiable by the TSA at a checkpoint (because they lost their wallet, for example) indicate something nefarious on their part, or is that merely a reflection on the abilities of the TSA?

(2) If a person's identification cannot be verified by the TSA at a checkpoint, who's name do you put on the list?

(3) If the TSA fails in it's ability to verify the identity of a distressed traveler who's ID has been stolen or lost, why is TSA adding to their problems by not allowing them to fly (possibly returning home) even if they could be throughly vetted as having nothing more dangerous than fingernails with them?

(4) If a traveler manages to get new ID after getting on the list because of a TSA failure to validate their identification, are they removed from the list?

(5) In reference to (4): If not, why not?

====

Since this topic was entitled Furthering the Dialogue on IDs, and since "dialogue" is "n. 1. A conversation between two or more people.", why is there total silence on the TSA side of this conversation?

The level of response in most of this blog is less than expected, and quite truthfully inadequate, but the level of response in THIS particular topic has been ZERO.

Oh, one more:

(6) Who wrote the post that started this topic?

I put my name on what I write, and take responsibility for it. We should at least expect those writing the official TSA pronouncements to do the same. Anonymity and refusal to respond to quite legitimate questions is not a "dialogue" no matter what dictionary you use.

Speak up! Represent your agency! Take responsibility for what you write by putting your name on it. Hold that dialog you want to further. Don't just make an anonymous pronouncement, go into hiding, and expect us to buy that as "Furthering the Dialogue."

"How do you reconcile this reading with the 9th Circuit's holding in Gilmore, which stated that ID verification was constitutional only because an alternative method (extra screening) was allowed for those who did not wish to show ID?

(and for the record, to the above poster who talked about "Armchair JDs"... I hold a JD, an LLM, and am admitted to the bar in 3 states. Just to let you know.)"

From the 9th circuit opinion (Gilmore) you refer to:

We see little difference between the search measures discussed inDavis and those that comprise the “selectee” search option ofthe passenger identification policy at hand. Additionally, Gilmore was free to decline both options and use a differentmode of transportation. In sum, by requiring Gilmore to comply with the identification policy, Defendants did not violatehis right to travel."

Now...I follow your logic. Remove the selectee screening option and what do you have? However, in reading the opinion, specifically the text quoted above, Gilmore was free to select either option and he did not, therefore he left. The same holds true today...produce ID as part of a regulatory requirement (Davis) to access the sterile area, assist TSA in establishing your identity, go away or travel by another means…four alternatives offered. There is still no criminal sanction attached to the refusal to show ID, so due process and 4th amendment implications are removed per the Gilmore decision itself.

"The identification policy requires airline passengers to present identification to airline personnel before boarding or be subjected to a search that is more exacting than the routine search that passengers who present identification encounter." [emphasis added]

It goes on to say...

"Gilmore alleges that when he refused to present identification or be subjected to a more thorough search, he was not allowed to board his flights to Washington, D.C." [emphasis added]

Continuing...

"The [United Airlines Ground] Security Chief informed Gilmore that he could fly without presenting identification by undergoing a more intensive search, i.e. by being a “selectee.” A “selectee” search includes walking through a magnetometer, being subjected to a handheld magnetometer scan, having a light body patdown, removing one’s shoes, and having one’s carry-on baggage searched by hand and a CAT-scan machine. Gilmore refused to allow his bag to be searched by hand and was therefore barred from flying."

And...

"...Gilmore does not possess a fundamental right to travel by airplane even though it is the most convenient mode of travel for him. Moreover, the identification policy’s “burden” is not unreasonable....The identification policy requires that airline passengers either present identification or be subjected to a more extensive search." [emphasis added]

Note that so far there are two different things in play here: Gilmore's refusal to either show identification OR permit his carry-on to be searched, which is what denied him travel by air, and the fact that he could walk away and chose another mode of travel with no further government intervention.

Clearly, as the court said...

"Gilmore had a meaningful choice. He could have presented identification, submitted to a search, or left the airport. That he chose the latter does not detract from the fact that he could have boarded the airplane had he chosen one of the other two options." [emphasis added]

So, while the court does say that flying was not the only mode of travel Gilmore could have chosen, it goes on to say that point was not reached as Gilmore chose to walk away and not fly, AND that the reason there was no constitutional problem with the request for ID was that there was an alternative to identification, and that was a detailed search.

NOWHERE does the court say that if the traveler does not present acceptable identification they must submit to interrogation to verify their identity, instead the court says that if the traveller does not present acceptable identification, they have two other choices: Submit to a detailed search or not fly.

Gilmore in no way authorizes the interrogation to determine one's identity, but only confirms that a detailed search of the person and their carry-on belongings is an acceptable alternative to confirming one's identity, as is refusing both and walking away.

Had there been no alternative to personally identifying oneself in the "identification policy," the ruling may have been quite different.

The current demand BY A GOVERNMENT AGENCY to either present acceptable identification or submit to interrogation for the purpose of determining your identification was not in play at the time of the Gilmore decision. That extra step of a government official refusing to allow one to proceed to the detailed search, and then boarding, which the court apparently found sufficient under the law, is what is being questioned.

No amount of hand-waving, word substitution, or re-defining by a TSA attorney convinces me (or apparently many others) that the attorney's interpretation of the law overrides that of the 9th circuit.

This needs to go through the courts again, and the agency needs to show the court the law that authorizes them to deny boarding, even with additional detailed search, if the agency doesn't know the travelers name. That is neither in the law nor in the court's decisions to date.

"I think I can understand your concern in this case. I suspect that you feel that keeping a list of wanted criminals, then checking everyone who passes the government checkpoint at an airport against that list will help us to find and apprehend criminals. I agree with that. However, such a dragnet is unconstitutional, and finding criminals is not the TSA's duty (it's the duty of police)."

I was going a different route with my original statement. I was actually trying to state that I don't feel that anyone should be denied boarding an aircraft for merely being on a list if they have committed no crimes. Pretty much just disagreeing with the no fly list as it currently is carried out.

Phil wrote:"Jason, if I read you right, you're saying that 1) some people are dangerous and need to be thoroughly screened before boarding a commercial airplane, 2) we have a list of those people, 3) we should assume that people who are not on the list pose so little danger that they need not be thoroughly screened before boarding a plane. Is that right? If not, please set me straight."

1. Yes, but I would say "more" thoroughly than others.2. No, we currently have a muddled and confused mess that passes for a list.3. Everyone should undergo a minimum level of security: walkthrough, x-ray, etc. Additional screening, not for cause (i.e. a walkthrough alarm), would be used for extra security individuals.

Phil wrote:"How do you suppose anyone could determine what level of threat a given passenger presents? Without reading minds, that is. By knowing that the passenger has a history of bombing or attempting to bomb airplanes, maybe? I don't think we have to worry about those people showing up at an airport, as they are almost certainly sitting in prison."

What I was thinking of in this case is if the individual has attended a terrorist training camp or has known terrorist ties. (I know what you're thinking; treading into very murky territory here). I in no way shape or form believe that we have the support structures in place to carry this out. The current watchlists do not accomplish these goals. My point was merely that ID verification could be a beneficial tool for security.

I've also just reviewed 49 C.F.R. § 1540.5 again and cannot find the word "generally" used anywhere in the definition of the screening process. In fact, the only place that term is used in in defining the sterile area, as follows:Sterile area means a portion of an airport defined in the airport security program that provides passengers access to boarding aircraft and to which the access generally is controlled by TSA.Based on this section it seems somewhat ironic in its usage in that it implies that the TSA doesn't have complete control, just that they "generally" have control.

while all airports have a sterile area, not all of them have TSA screening passengers. some use contractors that have been approved by TSA but do not represent TSA. that is why it says TSA "Generally" has control

"The identification policy requires airline passengers to present identification to airline personnel before boarding or be subjected to a search that is more exacting than the routine search that passengers who present identification encounter." [emphasis added]

It goes on to say...

"Gilmore alleges that when he refused to present identification or be subjected to a more thorough search, he was not allowed to board his flights to Washington, D.C." [emphasis added]

Continuing...

"The [United Airlines Ground] Security Chief informed Gilmore that he could fly without presenting identification by undergoing a more intensive search, i.e. by being a “selectee.” A “selectee” search includes walking through a magnetometer, being subjected to a handheld magnetometer scan, having a light body patdown, removing one’s shoes, and having one’s carry-on baggage searched by hand and a CAT-scan machine. Gilmore refused to allow his bag to be searched by hand and was therefore barred from flying."

And...

"...Gilmore does not possess a fundamental right to travel by airplane even though it is the most convenient mode of travel for him. Moreover, the identification policy’s “burden” is not unreasonable....The identification policy requires that airline passengers either present identification or be subjected to a more extensive search." [emphasis added]

Note that so far there are two different things in play here: Gilmore's refusal to either show identification OR permit his carry-on to be searched, which is what denied him travel by air, and the fact that he could walk away and chose another mode of travel with no further government intervention.

Clearly, as the court said...

"Gilmore had a meaningful choice. He could have presented identification, submitted to a search, or left the airport. That he chose the latter does not detract from the fact that he could have boarded the airplane had he chosen one of the other two options." [emphasis added]

So, while the court does say that flying was not the only mode of travel Gilmore could have chosen, it goes on to say that point was not reached as Gilmore chose to walk away and not fly, AND that the reason there was no constitutional problem with the request for ID was that there was an alternative to identification, and that was a detailed search.

NOWHERE does the court say that if the traveler does not present acceptable identification they must submit to interrogation to verify their identity, instead the court says that if the traveller does not present acceptable identification, they have two other choices: Submit to a detailed search or not fly.

Gilmore in no way authorizes the interrogation to determine one's identity, but only confirms that a detailed search of the person and their carry-on belongings is an acceptable alternative to confirming one's identity, as is refusing both and walking away.

Had there been no alternative to personally identifying oneself in the "identification policy," the ruling may have been quite different.

The current demand BY A GOVERNMENT AGENCY to either present acceptable identification or submit to interrogation for the purpose of determining your identification was not in play at the time of the Gilmore decision. That extra step of a government official refusing to allow one to proceed to the detailed search, and then boarding, which the court apparently found sufficient under the law, is what is being questioned.

No amount of hand-waving, word substitution, or re-defining by a TSA attorney convinces me (or apparently many others) that the attorney's interpretation of the law overrides that of the 9th circuit.

This needs to go through the courts again, and the agency needs to show the court the law that authorizes them to deny boarding, even with additional detailed search, if the agency doesn't know the travelers name. That is neither in the law nor in the court's decisions to date.

Tom(One of the 5 or 6 regulars.)

August 16, 2008 2:42 AM

tomas, tomas, tomas....

adding the word "interogation" to the argument by you does not make it true either. Engaging in meaningful dialog to help establish ones identity might have been more acurate. Shame on you for commiting the same offence that you accuse the TSA of make you just as guilty as them.

adding the word "interogation" to the argument by you does not make it true either. Engaging in meaningful dialog to help establish ones identity might have been more acurate. Shame on you for commiting the same offence that you accuse the TSA of make you just as guilty as them."

Synonyms for "interrogate":

QuestionInterviewCross-examineQuizGrill

There is no "meaningful dialog to help establish ones (sic) identity" (just like there is no meaningful dialog on this blog); one answers a series of QUESTIONS.

I have taken the time to thoroughly read the extra laws stated by Francine. I STILL cannot find ANYTHING that would overturn, bypass, or modify the definitions of 49 C.F.R. § 1540.5 to allow a forced ID verification as a criterion for granting access to the sterile area.

So far this has been like playing a game of Where's Waldo with an issue of Playboy. While there are many interesting and attractive things to look at, sadly Waldo is nowhere to be found.

I try to never assume the worst about anyone or any given situation.

When this forced ID verification issue first reared its ugly head, I assumed that the old Trollkiller had simply missed an update in the laws that would allow for this intrusion. I figured that asking for a clarification would be no big deal, I figured that the TSA would have all its ducks in a neat little row and would be able to quickly point me in the right direction. WOW, was I wrong.

So far in our quest for the legal source of the forced ID verification we have been treated to a song and dance routine that would be at home on Broadway.

Don't get me wrong I love to see a show as well as anyone but this in NOT entertainment.

This is a case of a Government entity willfully and purposefully acting illegally against 2 MILLION people a day!

Respectfully I once again ask for the SPECIFIC section of law that allows for a forced ID verification to be used as a criterion for granting access to the sterile area. All it takes is one.

Understand that I do not care what justification you have for breaking the law. I just want the specific section of law that overturns 49 C.F.R. § 1540.5.

Thanks to our friends at the 9th Circuit Court of Appeals, "Critics of the government's secret no-fly list scored a potentially important victory Monday when a federal appeals court ruled that would-be passengers can ask a judge and jury to decide whether their inclusion on the list violates their rights...

...A federal judge in San Francisco had dismissed the suit, citing a law that requires all challenges to TSA orders to be filed directly in an appeals court, with no right to present evidence or convene a jury. But the appeals court majority, led by Chief Judge Alex Kozinski, said the no-fly list, though maintained by the TSA, is actually compiled by a branch of the FBI, which can be sued in a trial court like most other federal agencies."

"The Transportation Security Administration, which maintains the no-fly list, had no comment on the case, said Nico Melendez, an agency spokesman in Los Angeles."

The TSA agent, as part of spot inspection of aircraft security, climbed onto the parked aircraft using control sensors mounted on the fuselage as handholds, according to a TSA official in Chicago, Elio Montenegro.

"Our inspector was following routine procedure for securing the aircraft that were on the tarmac," Montenegro told ABCNews.com.

So it's routine procedure to use plane instruments and break them?

and

Another pilot wrote the TSA agents, "are now doing things to our aircraft that may put our lives, and the lives of our passengers at risk."

Say it isn't so! TSA is there for our SAFETY! :rolleyes:

and

Another airline, Mesa Air Group, told its employees earlier this month that "48 percent of all TSA investigations involving Mesa Air Group involve a failure to maintain area/aircraft security."

Mesa said it was imposing a "zero-tolerance" policy for such violations, threatening employees with dismissal.

adding the word "interogation" to the argument by you does not make it true either. Engaging in meaningful dialog to help establish ones identity might have been more acurate. Shame on you for commiting the same offence that you accuse the TSA of make you just as guilty as them."

Synonyms for "interrogate":

QuestionInterviewCross-examineQuizGrill

There is no "meaningful dialog to help establish ones (sic) identity" (just like there is no meaningful dialog on this blog); one answers a series of QUESTIONS.

August 18, 2008 2:34 PM

And you Sandra wax poetically. You can post definitions and thesaurus entries all you want and it still doesn't meen a thing in the big picture.

While it's fresh in my mind, I posted a question asking Francine about the text of her Oath Of Office. My post also did not violate any of their posting rules.

This travesty of an agency must be in full damage control mode, becuase, in addition to everything else, they just annoyed a Bay Area woman because of her underwire bra and a resulting retaliatory secondary. Nico was right on top of it, issuing his typical well-crafted non-statement.

About five thousand people insist that the word "generally" was made up by Ms. Kerner and not actually in the definitions regulations. But if you go down to the definition of "sterile area," you will see that it does indeed contain the word "generally." Ms. Kerner was attempting to make the rather incomprehensible regulations more easily understandable, it seems, and she did a good job as far as I can tell.

Also, many people have argued that the regulatory definitions contain some kind of fundamental limit on TSA's authority. Without wandering into too much legal mumbo-jumbo, what is relevant is not the regulations, but the underlying law -- 49 U.S.C. 44901 -- which provides that there "shall" be screening of "passengers and property." TSA uses ID checks to avoid super-invasive physical searches. TSA has an obligation to provide for airport security. Courts virtually ALWAYS defer to an agency's implementation of the laws they are supposed to implement unless the implementation is clearly wrong, which in this case it is not. At best you could say the point is debatable, and any court will say that they should "defer to the agency's expertise."

Comments about people popping in with armchair JDs are entirely appropriate.

How does it do so, Dan? Please, I don't intend to be combative; I really want to know how you think an attempt at identifying a potential passenger can, in the context of transportation safety, serve the same or even a similar purpose as a search of that person and his belongings.

"TSA has an obligation to provide for airport security."

Are you sure of that? I understand that we all assume so, and it seems like a valid assumption, but the mission statement of TSA is "The Transportation Security Administration protects the Nation’s transportation systems to ensure freedom of movement for people and commerce." They could work towards that mission in many different ways, some of which include enhancing airport security, some of which do not.

Trollkiller, any response from the IG on your questions of forced ID checks by TSA?

Perhaps a follow-up is needed.

Appears the "ignore it and it will go away" runs rampant throughout the DHS as I have not received a call, letter or email in regards to my complaint. I hope the Kip, Francine and the rest of the TSA did not take my short rest as a sign of giving up.

I invite you and everybody else that is interested to seek information about my complaint via a FIOA request. The document you are seeking is DHS080708-36

I also invite you to file your own complaint by using the following contacts.